Trade mark cancellation for non-use: EUIPO cancels colour mark on application by BMW

Due to non-use of the trade mark, the colour mark of Autowin.eu Ltd. was completely cancelled. The applicant was Bayerische Motoren Werke AG (BMW). The decision of 10 October 2025 clearly demonstrates how strict the requirements for genuine use of a trade mark in the EU are and why proprietors should carefully document their trade mark activities.

In proceedings C 67 385 BMW applied for the cancellation of the European colour mark No. 018036515

of Autowin.eu Ltd. The trade mark had been registered since July 2019 for goods in classes 18 (including saddlery, walking sticks) and 20 (including figurines, containers, holders, animal housing).

BMW relied on Article 58(1)(a) of the Union Trade Mark Regulation (UMV), the principal legal ground for cancellation of a trade mark for non-use. Under this provision, a trade mark may be cancelled if it has not been put to genuine use within five years following registration and there are no legitimate reasons for non-use.

The cancellation division of the EUIPO granted the application and revoked the trade mark registration entirely.

The arguments of the parties

BMW based its application on the lack of use of the trade mark. The evidence provided by the trade mark proprietor, according to the argument, was insufficient to demonstrate genuine use.

Autowin.eu Ltd. referred to use of the trade mark on the Internet. The company operates several websites (autowin.com, autowin.eu) as well as country-specific domains and distributes products via online marketplaces such as eBay and Amazon. The trade mark is used on various products, such as number plate holders and decorative objects.

The company also argued that even minor deviations in representation, for example diagonally arranged colour stripes, did not alter the distinctive character of the trade mark. Data protection restrictions also prevented more comprehensive data storage regarding customers and sales.

The EUIPO's decision: No adequate use

The EUIPO established that the burden of proof for genuine use lies exclusively with the trade mark proprietor. Only actual, economically relevant use of the trade mark in the course of trade can prevent cancellation.

The evidence provided by Autowin.eu – including website statistics, eBay printouts, invoices and advertisements – failed to convince the authority:

• Many documents were not dated within the relevant five-year period.
• There were no concrete proof of sales for products marked with the trade mark.
• The sales volume was minimal: 18 number plate holders sold with a total value of only €342.
• Furthermore, the representation of the trade mark on the products deviated from the registered colour mark.

Overall, the company was unable to adequately demonstrate the time, place, extent or nature of use. The EUIPO therefore found no genuine use of the trade mark within the meaning of Art. 58 UMV.

The result: The proprietor's rights were revoked entirely, effective retroactively from 14 August 2024

Lessons from the case: What 'non-use of a trade mark' means in practice

This decision exemplifies what is meant by 'non-use of a trade mark':
A trade mark can only subsist if it is actually used, and in a manner that can be proven, is used as a trade mark and is used within the EU. Even minor negligence in documenting or in the manner of use of the trade mark can be sufficient to lose protection.

In particular, online retailers should be aware that the mere operation of a web shop or occasional offers on platforms such as eBay is not sufficient. Without clear evidence of sales, advertising and product marking, the risk of loss of trade mark protection is real.

Practical tips for trade mark proprietors

1. At the latest five years after registration, a trade mark must be visibly used in the course of trade.
2. Systematically collect invoices, screenshots, advertisements, product photographs and proof of sales.
3. Ensure that the sign as used corresponds to the registered trade mark, particularly for colour marks and graphic variants.
4. Regularly check whether your trade marks are actually being used.
5. If you have doubts about trade mark use or face impending cancellation proceedings, seek legal advice promptly.

As trade mark attorneys we comprehensively advise and represent companies on all questions concerning trade mark use, the protection of existing trade marks and in proceedings before the EUIPO and the national trade mark offices. We support you in strategically securing your trade mark – before it is cancelled due to non-use.